JUDGMENT (Restoration Application M.C.C. No. 505 of 2011) This writ petition was dismissed for want of prosecution vide order dated 6.7.2011. 2. The petitioner has moved the restoration application to recall the dismissal order dated 6.7.2011. 3. Grounds are sufficient to recall the order dated 6.7.2011. The order dated 6.7.2011 is hereby recalled. The writ petition is restored to its original number. The restoration application is allowed. 4. By means of this writ petition, the petitioners have sought a writ in the nature of certiorari quashing the order dated 16.6.1989 (Annexure-5 to the writ petition) passed by the 1st Additional Civil Judge, Dehradun in Civil Appeal No. 77 of 1971, whereby application 58-Ka 1, which was moved by the petitioner for abatement of the appeal was rejected. 5. Relevant facts, giving rise to the present writ petition, in brief, are that initially Molhar Mal, Smt. Chameli, Sri Prabhu Dayal, Shambhu Dayal, Sri Manohar Lal, Anoop Singh, Sri Chiranji Lal, Sri Ghamandi Lal and Sri Daya Ram instituted a Civil Suit No. 173 of 1969 against Lala Shrimander Das Jain, M/s Daya Ram Om Prakash, Smt. Dewano, Sri Kundan, Mistri Har Prasad, Sri Udai Bhan, Sri Jungi and Sri Ram Balesh, all residents of 29/30, Neta Ji Mohalla, Dehradun, for delivery of actual possession against the defendant No. 1 and symbolic possession against the defendant nos. 2 to 8 on the property No. 29/30 Neta Ji Mohalla, Dehradun as bounded in the plaint and for mesne profits against defendant no. 1 at the rate of Rs. 50/- per month since 1.9.1966 till the date of recovery of possession with the allegations that Smt. Lali widow of Lala Bidhi Chand (who was a cousin of the father's father of the plaintiffs) was the owner in possession till her death of House No. 29/30, Netaji Mohalla Dehradun. It is also alleged that Smt. Lali had acquired the said property by means of a sale deed dated 5.5.1944, which was executed in her favour by one Bharat Singh. In paragraph 4 of the plaint, it is alleged that Smt. Lali died intestate on 28.4.1961. It is also alleged that Smt. Lali had acquired the said property by means of a sale deed dated 5.5.1944, which was executed in her favour by one Bharat Singh. In paragraph 4 of the plaint, it is alleged that Smt. Lali died intestate on 28.4.1961. Plaintiffs alleged in para 5 of the plaint that on the death of Smt. Lali, aforesaid property devolved upon the plaintiffs they being the heirs of the husband of Smt. Lali and that thereafter the uncle of the plaintiffs made an application to the City Board, Dehradun for mutation of the said property in the names of the plaintiffs and began to realize rent from defendants nos. 2 to 7, who were tenants in the said property at that time. The said uncle of the plaintiffs too died issueless in the year 1963. In the year 1965, taking the advantage of the absence of the plaintiffs, the defendant no. 1, who resides just in front of the said property impressed upon the tenants-defendant nos. 2 to 8 that he is the owner of the said property and began to realize rent from them and that the defendants nos. 2 to 8 are also in collusion with the defendant no.1 and are paying rent to him and in order to strengthen his chain on the property in suit, the defendant no. 1 got a fictitious deed of sale executed on 10th May 1965 in his favour by some non-existent fictitious lady called 'Kalawati' by name. It is also alleged that the defendant no. 1 has no legal right or title to the said property. It is further alleged that the defendant nos. 2 to 8 are the tenants in the said property and so they have also been made parties to the suit by way of abundant caution. 6. The defendant no. 1 filed his written statement and contested the suit contending that after the death of Smt. Lali, her sister Smt. Kalawati became the sole heir and legal representative of Smt. Lali and that Smt. Kalawati rightly executed the sale deed of the property in question in his favour. The suit was dismissed by the trial Court by judgment and decree dated 29.6.1971. 7. Aggrieved, the plaintiffs filed the appeal. 8. In the appeal, the respondent no. 1 Mandar Das moved application paper no. 58-Ka1 to the effect that appellant nos. The suit was dismissed by the trial Court by judgment and decree dated 29.6.1971. 7. Aggrieved, the plaintiffs filed the appeal. 8. In the appeal, the respondent no. 1 Mandar Das moved application paper no. 58-Ka1 to the effect that appellant nos. 2,5,6,7, 8 and 9 have died much before the hearing of appeal. It is further alleged that respondent no. 4 Sri Kundan also died on 2.12.1986 and that no application for substitution to bring on record the heirs and legal representatives of the deceased has been moved. It has been prayed that the appeal has abated. An affidavit has been filed in support of the aforesaid application. 9. Objection paper no. 62-C2 has been filed against the said application alleging therein that it is wrong to say the suit has abated on account of death of some of the plaintiff-appellants or one of the defendant-respondents. It is also alleged that the surviving plaintiff-appellants have a right to continue the suit and that the application is liable to be rejected. 10. The learned appellate Court after hearing both the parties has come to the conclusion that the appeal would not abate and would continue and consequently, the application paper no. 58-Ka1 has been rejected by order dated 16.6.1989, which gave rise to the present writ petition. 11. I have heard learned counsel for the parties and perused the material placed before this Court. 12. The short question to be decided in this writ petition is whether by non-substitution of the legal heirs of deceased appellants in appeal, the appeal would abate or survive. 13. Learned counsel for the petitioners has vehemently argued that in this case, the positive case of the plaintiffs is that the plaintiffs have co-ownership right in joint property. Learned counsel for the petitioners has further submitted that in the plaint, no where the plaintiffs have alleged that each one of the plaintiffs has an independent and distinct right of his own, therefore, due to non-substitution of legal heirs of some of the deceased plaintiff-appellants, the appeal as a whole would abate. Learned counsel in support of his case has placed reliance upon the verdict of the Apex Court in the following cases: 1. Budh Ram and others Vs. Bansi and Others [2010 AIR SCW, Page 5071]. 2. Rameshwar Prasad and others Vs. Shambehari Lal Jagannath and another [AIR 1963 Supreme Court, 1901]. 14. Learned counsel in support of his case has placed reliance upon the verdict of the Apex Court in the following cases: 1. Budh Ram and others Vs. Bansi and Others [2010 AIR SCW, Page 5071]. 2. Rameshwar Prasad and others Vs. Shambehari Lal Jagannath and another [AIR 1963 Supreme Court, 1901]. 14. In Budh Ram and others (supra), the Apex Court in paragraphs 19 and 20 has held as under: - "19. Therefore, the law on the issue stands crystallised to the effect that as to whether non-substitution of L. Rs. of the defendants/respondents would abate the appeal in toto or only qua the deceased defendants/respondents, depend upon the facts and circumstances of an individual case. Where each one of the parties has an independent and distinct right of his own, not inter-dependent upon one or the other, nor the parties have conflicting interest inter se, the appeal may abate only qua the deceased respondent. However, in case, there is a possibility that the Court may pass a decree contradictory to the decree in favour of the deceased party, the appeal would abate in toto for the simple reason that the appeal is a continuity of suit and the law does not permit two contradictory decrees on the same subject-matter in the same suit. Thus, whether the judgment/decree passed in the proceedings vis-a-vis remaining parties would suffer the vice of being a contradictory or inconsistent decree is the relevant test. 20. The instant case requires to be examined in view of the aforesaid settled legal propositions. Every co-owner has a right to possession and enjoyment of each and every part of the property equal to that of other co-owners. Therefore, in theory, each has a right irrespective of the quantity of its interest, to be in possession of every part and parcel of the properly jointly with others. A co-owner of a property owns every part of the composite property along with others and he cannot be held to be a fractional owner of the property unless partition takes place. In the instant case a declaratory decree was passed in favour of respondents/plaintiffs and Smt. Parwatu to the effect that they were co-owners, though, they had specific shares but were held entitled to be in "joint possession". In the instant case a declaratory decree was passed in favour of respondents/plaintiffs and Smt. Parwatu to the effect that they were co-owners, though, they had specific shares but were held entitled to be in "joint possession". The appellants/applicants had sought relief against Smt. Parwatu before the 1st Appellate Court as there was a decree in her favour, passed by the Trial Court where Smt Parwatu had been impleaded by the appellants/applicants as pro forma respondent. In such a fact-situation, she had a right to contest the appeal. Once a decree had been passed in her favour, a right had vested in her favour. On her death on 19.11.2000, the said vested right devolved upon her heirs. Thus, appeal against Smt. Parwatu stood abated. In the instant case, the 1st appellate Court rejected the application for condonation of delay as well as the substitution of L.Rs. of Smt. Parwatu, respondent No. 4 therein. The only question remains as to whether the appeal is abated in toto or only in respect of the share of Smt. Parwatu. The High Court has rightly reached the conclusion that there was a possibility for the Appellate Court to reverse the Judgment of the Trial Court and in such an eventuality, there could have been two contradictory decrees, one in favour of Smt. Parwatu and the other, in favour of the present appellants. The view taken by the High Court is in consonance with the law laid down by this Court consistently. The facts of the case do not warrant any further examination of the matter." 15. In the case of Rameshwar Prasad (supra), the Apex Court has held that the principle behind the provisions of Rule 4 of Order 41 C.P.C. seems to be that any one of the plaintiffs or defendants, in filing an appeal as contemplated by the rule, represents all the other non-appealing plaintiffs or defendants as he wants the reversal or modification of the decree in favour of them as well, in view of the fact that the original decree proceeded on a ground common to all of them. Where a number of persons have filed an appeal and pending the appeal one of the appellants dies, the surviving appellants cannot be said to have filed the appeal as representing the deceased appellant. 16. Where a number of persons have filed an appeal and pending the appeal one of the appellants dies, the surviving appellants cannot be said to have filed the appeal as representing the deceased appellant. 16. On the other hand, the learned counsel for the private respondents while supporting the impugned order has contended that failure to bring on record Legal Representatives of some of the appellants during pendency of appeal would not amount abatement of appeal in toto. In support of his contention, learned counsel has placed reliance upon the constitution bench judgment in the case of Sardar Amarjit Singh Kalra (Dead) by LRS. Vs. Pramod Gupta (SMT) (Dead) by L.Rs. and others [(2003) 3 Supreme Court Cases, 272] as well as in the case of State of Haryana and others Vs. Gurcharan Singh and others [(2004) 12 SCC, 540]. 17. I have pondered over the matter and have perused the case law cited from both the sides. 18. It is pertinent to mention that in the case of Budh Ram Vs. Bansi (supra) the Apex Court has already considered the ratio of the case of Sardar Amarjit Singh Kalra and others Vs. Pramod Gupta and others (supra), which has been relied upon by the respondents. 19. In the case at hand, as mentioned earlier, in the suit it has no where been alleged that the shares of each of the plaintiffs is either separable or distinct and that there is no possibility of passing two contradictory decrees in respect of the same subject matter, therefore, in my view the case-law of Budh Ram Vs. Bansi (supra) is fully applicable to the case at hand and in my view due to non-substitution of some of the appellants as mentioned in the application 58-Ka1, the appeal is bound to abate in toto. The conclusion arrived at to the contrary by the learned appellate Court vide order dated 16.6.1989 is not tenable in the eye of law. 20. For the reasons and discussion above, the writ petition deserves to be allowed and the impugned order is liable to be set aside. The application 58-Ka moved by the sole petitioner Lala Srimandar Das Jain herein (since deceased) before the appellate Court deserves to be allowed. 21. The writ petition is allowed. The impugned order dated 16.6.1989 is quashed. The application (paper no. The application 58-Ka moved by the sole petitioner Lala Srimandar Das Jain herein (since deceased) before the appellate Court deserves to be allowed. 21. The writ petition is allowed. The impugned order dated 16.6.1989 is quashed. The application (paper no. 58-Ka1) moved on behalf of the petitioners for abatement of appeal in toto is allowed. The Civil Appeal No. 77 of 1971 pending before the I Additional District Judge Dehradun Sri Molhar Mal and others Vs. Srimandar Dass Jain and others stands abated. Costs easy. 22. Interim order dated 27.7.1989 is vacated.